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Hope does not challenge the sufficiency of the evidence to support her convictions.
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testified that Head Start was not supposed to give out childrens Medicaid
information.
At
Hopes
direction,
HNS
employees
prepared
cookie-cutter
Tonya testified that she, and not Hope, provided the nutritional
counseling, although the relevant patient forms were signed with Hopes signature.
The government also presented evidence that Hope billed for services provided on
days when she was on vacation.
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approximately eight years, testified that Hope directed Sloan and others to submit
claims to Medicaid, regularly held meetings about billing, and tracked the number
of claims submitted to Medicaid each day.
Several parents and guardians of Head Start children testified.
They
generally stated that they were not aware of any nutritional problems with their
children, never took their children to a physician for a nutritional consultation, and
did not fill out any forms regarding a nutritional assessment.
After Hope presented witnesses and testified in her defense, the jury
deliberated for just over two hours and returned a verdict finding Hope guilty on
all 58 counts remaining in the superseding indictment. 2 She was sentenced to a
total term of 192 months in prison. Hope now appeals.
II. Standard of Review
Hope concedes that plain-error review applies to her arguments on appeal
because she did not object to the alleged errors before the district court. United
States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). To demonstrate plain
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error, a defendant must establish that there is (1) an error (2) that is plain and (3)
that has affected the defendants substantial rights; and if the first three prongs are
satisfied, we may exercise discretion to correct the error if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings. United
States v. Madden, 733 F.3d 1314, 1322 (11th Cir. 2013).
A plain error is one that is clear or obvious. United States v. Olano,
507 U.S. 725, 734, 113 S. Ct. 1170, 1777 (1993); see United States v. Lett, 483
F.3d 782, 790 (11th Cir. 2007) (explaining that a plain error must be plain
under controlling precedent or in view of the unequivocally clear words of a statute
or rule). For an error to affect substantial rights, in most cases the error must
have been prejudicial: It must have affected the outcome of the district court
proceedings. Olano, 507 U.S. at 734, 113 S. Ct. at 1777-78.
III. Discussion
Hope raises four issues on appeal.
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A.
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U.S.C. 1028A(c)(5).
Hope contends that the appended parenthetical, (relating to mail, bank, and
wire fraud), limits the scope of predicate chapter 63 offenses to solely mail,
bank, and wire fraud. We disagree.
In United States v. Herring, 602 F.2d 1220 (5th Cir. 1979),3 this Courts
predecessor rejected the same construction of 18 U.S.C. 1961 that Hope seeks to
apply to 1028A. 602 F.2d at 1223. Section 1961 defines racketeering activity
to include sections 2314 and 2315 (relating to interstate transportation of stolen
property). Id.; see 18 U.S.C. 1961. The defendant in Herring argued that his
conviction under 18 U.S.C. 2314, for interstate transportation of securities
converted or taken by fraud, was not racketeering activity as defined by 1961
because it did not involve interstate transportation of stolen property, as
identified in the parenthetical. Herring, 602 F.2d at 1223.
The Court in Herring rejected the defendants contention, holding that the
reference
to
the
interstate
transportation
of
stolen
property
in
the
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981.
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Section 1028A(c)s list of enumerated felonies contains eleven subparts, each of which
has a similar parenthetical providing a general description of the offenses to which they pertain.
18 U.S.C. 1028A. Some subparts refer to specific statutory sections, such as section 911
(relating to false personation of citizenship), 18 U.S.C. 1028A(c)(3), while others refer to
chapters, as in this case. See United States v. Abdur-Rahman, 708 F.3d 98, 101 (2d Cir. 2013)
(providing a general description of these subparts).
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Jury Instructions
Hope next argues that the district court plainly erred by referring to issues of
punishment when instructing the jury on the offense of aggravated identity theft.
We disagree.
In general, juries are not to be informed of or concerned with the
consequences of their verdicts. United States v. Thigpen, 4 F.3d 1573, 1577 (11th
Cir. 1993) (en banc).
We also note that our interpretation is consistent with other circuit courts construction
of the predicate felony definitions in 1028A(c). See, e.g., Abdur-Rahman, 708 F.3d at 101-02;
United States v. Harrell, 637 F.3d 1008, 1010-12 (9th Cir. 2011); United States v. Persichilli,
608 F.3d 34, 40-41 (1st Cir. 2010).
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(emphasis added).
punishment that arguably violated the canon that juries are not to be informed of
or concerned with the consequences of their verdicts. Thigpen, 4 F.3d at 1577.
However, a reference to punishment in jury instructions alone does not
necessarily constitute error. For example, in Cox, the judge gave the jury the
following instruction: the Judge, under the law, is permitted to impose anything
from a term of probation or a fine up to the maximum term of imprisonment that
Congress has set. 696 F.2d at 1298. Noting that this Court prefers no reference
to sentencing whatsoever, we nonetheless found that the instruction was not
erroneous because it in no way intimated what punishment [the judge] might be
inclined to give, and the judge consistently informed the jury that potential
punishment was not their concern. Id. at 1298-99.
Similarly, in this case, the district courts passing reference to sentencing in
no way intimated the likely consequences of finding Hope guilty. The court did
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See 18 U.S.C.
1028A(a)(1). And a jury might reasonably infer that finding Hope guilty of any
additional offense, particularly one with aggravated in its title, might result in an
enhanced penalty, whether instructed by the court to that effect or not. The
reference to enhanced also serves to highlight that aggravated identity theft is a
crime in addition to the predicate felony of health-care fraud.
And the district court expressly told the jury that punishment was not their
concern. Later in its instructions, the court stated, You must never consider
punishment in any way to decide whether the Defendant is guilty. If you find the
Defendant guilty, the punishment is for the Judge alone to decide later. Further,
the court instructed, Remember that, in a very real way, youre judgesjudges of
the facts. Your only interest is to seek the truth from the evidence in the case. We
presume that juries follow the courts instructions. Thigpen, 4 F.3d at 1577.
Therefore, in view of the courts express instructions not to consider punishment in
any way and only to seek the truth from the evidence in the case, Hope has not
shown that mere reference to an enhanced penalty was erroneous. See Cox, 696
F.2d at 1298-99; see also United States v. Cochran, 683 F.3d 1314, 1319 (11th Cir.
2012) (we analyze the objected-to portion of the instruction in light of the entire
charge, keeping in mind that apparently prejudicial isolated comments may be
innocuous in context).
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In short, the
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378 (6th Cir. 2002) (delineating factors to analyze whether wealth evidence is
unfairly prejudicial). Rule 403 is an extraordinary remedy that should be used
sparingly, and in reviewing Rule 403 issues we look at the evidence in the light
most favorable to its admission, maximizing its probative value and minimizing its
undue prejudicial impact. United States v. Flanders, 752 F.3d 1317, 1335 (11th
Cir. 2014) (quotation marks omitted), cert. denied, (U.S. Jan. 26, 2015) (No. 147642).
Here, the admission of evidence regarding Hopes wealth and luxury
purchases was not erroneous because it was relevant to the issues in the case, and
other evidence supports Hopes guilt. See Bradley, 644 F.3d at 1271. Some of the
evidence was relevant to establishing the fraudulent nature of specific claims. For
example, evidence of Hopes expenditures while on vacation showed that
Medicaid was billed for services on dates when Hope was not at HNS.
The wealth evidence was also relevant to rebutting Hopes defenses to the
charges. As part of her defense, Hope contended that she used the $4 million to
put into her practice and to pay her employees, who, according to her attorneys
opening statement, put that money in their bank account. Evidence of Hopes
lavish personal spending during the period in which the offenses occurred supports
the opposite inferencethat the majority of the money was going directly to Hope
for her personal benefit. Hope also argued that she did not knowingly commit
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fraud, but rather that the overpayments were the result of billing errors. The
wealth evidence was relevant to this defense because it supports an inference that
Hope did not honestly believe that she was receiving payments from Medicaid as a
result of billing errors or other mistakes, and also that she was the person
responsible for the scheme.
The evidence also goes to Hopes motive to commit the offenses. Hope
argues that motive was irrelevant by pointing to the prosecutors statement to the
jury that he did not need to show you why somebody committed a crime.
However, the fact that motive is not an element of the offense requiring proof does
not mean that it is irrelevant. As we have stated, Evidence, not part of the crime
charged but pertaining to the chain of events explaining the context, motive and
set-up of the crime, is properly admitted if linked in time and circumstances with
the charged crime, or forms an integral and natural part of an account of the crime,
or is necessary to complete the story of the crime for the jury. United States v.
Williford, 764 F.2d 1493, 1499 (11th Cir. 1985); see also Fed. R. Evid. 404(b)(2)
(noting that evidence of prior bad acts may be admissible for the purpose of
proving motive).
In sum, the evidence of Hopes wealth and spending was relevant to facts at
issue in Hopes trial. See Bradley, 644 F.3d at 1271-72. In addition, a substantial
amount of other credible evidence of the illegal activity was presented. See id. at
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1271. In view of these facts, we cannot say that the probative value of the wealth
evidence was substantially outweighed by a danger of unfair prejudice.
See
Flanders, 752 F.3d at 1335. Therefore, the district court did not commit error,
plain or otherwise, in admitting the evidence.
D.
Prosecutorial Misconduct
Hope contends that the governments closing argument constituted
address whether they were improper, and finally proceed to the question of
prejudice.
1.
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with this? Really? 7,000 kids? 7,000 kids in one month. You all can do the math.
Thats like 225 kids a day. 940 kids on September 11th of 2006. It makes me sick
to think that September 11th, Im going to remember it for this (indicating).
Second, in reference to testimony that untrained HNS employees pricked the
fingers of Head Start children purportedly to obtain hemoglobin measurements, the
prosecutor stated,
What was truly horrifying to me -- and I dont know if
you caught this -- but youve got some folks that are up
there testifying about how theyre pricking the fingers of
these children -- no training, nothing. Theyre stabbing
these little kids.
How would you feel, ladies and gentlemen, if you sent
your kid to some center and have some stranger, high
school educated person, thats going bing and stabbing
your kid with a pin? I dont think youd be too happy.
Third, the prosecutor commented on Marissa Garcia, an HNS employee who
testified at trial, as follows: And you heard Marissa Garcia. Marissa Garcia is
probably one of the funniest witnesses that Ive seen in quite a long time. She got
up there, and she was honest.
Finally, in rebuttal closing argument, the prosecutor stated,
Ladies and gentlemen, counsel quotes for you a Biblical
verse. Let me quote for you from the Old Testament, one
other thing Id like you to think about when you go back
there, one of the Ten Commandments. You might have
heard of it. Thou shalt not steal. Thats what this case
has been about.
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2.
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United States v.
Rodriguez, 765 F.2d 1546, 1559-60 (11th Cir. 1985). However, there is no
prohibition on colorful and perhaps flamboyant remarks if they relate to the
evidence adduced at trial. Bailey, 123 F.3d at 1400 (internal quotation marks
omitted).
Remarks can also be improper if they attempt to bolster the credibility of a
witness based on the governments reputation or through alluding to evidence not
admitted at trial. Lopez, 590 F.3d at 1256. Improper bolstering occurs if the jury
could reasonably believe that the prosecutor was indicating a personal belief in the
witness credibility. Id. (quotation marks omitted). However, this prohibition
does not forbid prosecutors from arguing credibility based on evidence admitted at
trial. Id.; see United States v. Schmitz, 634 F.3d 1247, 1270 (11th Cir. 2011) (We
have no doubt that there are some cases where a prosecutor is justified in arguing
during closing arguments that a particular witness is lying, if that is an inference
supported by the evidence at trial.).
We agree with Hope that the prosecutors closing arguments contained some
clearly improper statements. First, the prosecutors reference to September 11
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was, in context, improper and appears calculated solely to appeal to the jurys
passion or prejudice. While the reference to the number of claims HNS submitted
on September 11, 2006, in and of itself, was based on the evidence presented, the
prosecutor went further. In stating that it makes [him] sick to think that hell
remember September 11 for Hopes Medicaid fraud, the prosecutor implied that
the juries should also be disgusted not solely by the evidence of Hopes actions but
rather by some specious connection to an emotionally charged event. Therefore,
the remark was improper because it was intended solely to inflame.
Second, the prosecutor made an improper appeal to the jurors emotions by
asking the jurors to place themselves in the position of parents whose children
were stabb[ed] with a pin by HNS employees without medical backgrounds or
training. See United States v. McGarity, 669 F.3d 1218, 1246 (11th Cir. 2012); cf.
Grossman v. McDonough, 466 F.3d 1325, 1348 (11th Cir. 2006) (habeas case
discussing improper Golden Rule arguments under Florida law). Alone, the
prosecutors simple use of the word stab as opposed to prick would not have
been improper because it related to evidence admitted at trial and emphasized the
governments position that the services HNS provided to Head Start children were
fraudulent. But, in context, the remarksparticularly the invitation to the jurors to
put themselves in the positions of the childrens parentsplainly were an improper
appeal to the jurors emotions.
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We do not find that the other remarks challenged by Hope were improper.
With respect to the statement that Garcia was honest, the prosecutor did not
improperly vouch for a witnesss credibility. After stating that Garcia was honest,
the prosecutor went on to discuss her testimony and the other evidence introduced
at trial. Therefore, in context, we understand the prosecutors honest remark to
be an argument in favor of finding Garcia credible based on her behavior on the
stand and the evidence admitted. See Lopez, 590 F.3d at 1256.
Finally, the prosecutors reference to the Ten Commandments prohibition
against stealing was made in response to Hopes counsels reference to a Biblical
passage. We have explained that [a] prosecutor is entitled to make a fair response
to defense counsels arguments, even if the statement would otherwise be
inadmissible. United States v. Frank, 599 F.3d 1221, 1238 (11th Cir. 2010). In
any case, the prosecutor did not ask the jury to decide the case on a religious or
emotional basis, and the remark served mainly to highlight the governments
position that the case was fundamentally about theft. See Bailey, 123 F.3d at 140001 (holding that two references to the Bible during closing argument were not
improper).
3.
Improper remarks alone will not entitle a defendant to relief. Rather, Hope
must show prejudice to her substantial rights.
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demonstrate a reasonable probability that, but for the improper remarks, the result
of the trial would have been different. Lopez, 590 F.3d at 1256. She has not done
so for several reasons. See id. (delineating factors to assess the prejudicial effect of
a prosecutors conduct). We consider whether a defendants substantial rights
were prejudiced in the context of the entire trial, along with any curative
instruction. Id.
First, the improper remarks were isolated. They were not interrelated or an
extension of impermissible comments earlier in the proceeding. See, e.g., Schmitz,
634 F.3d at 1270 (finding that comments in closing argument were improper
because they were a clear continuation of improper questions during crossexamination).
Second, the district court gave curative instructions. See Lopez, 590 F.3d at
1256 (stating that, where the district court takes proper curative measures, we will
reverse only if the evidence is so prejudicial as to be incurable by that measure.).
The court instructed the jurors that their decisions must be based only on the
evidence presented here in this courtroom, that anything the lawyers say is not
evidence, and that they must not be influenced in any way by either sympathy
for or prejudice against the Defendant or the Government.
Third, and most significantly, the government convincingly established
Hopes guilt by admissible, inculpatory evidence, the vast majority of which is
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uncontested by Hope on appeal and unrelated to the errors raised. See id. (When
the record contains sufficient independent evidence of guilt, any error is harmless.
(quotation omitted)). At trial, the government presented extensive documentary
and testimonial evidence of guilt from fraud investigators, the case agent,
numerous former HNS employees, Hopes cooperating co-conspirator, and the
parents of Head Start children whose billing information was used by Hope. Hope
does not argue that the evidence of her guilt was weak or insubstantial.
In
addition, Hope testified on her own behalf. By doing so, she ran the risk that the
jury would disbelieve her and conclude that the opposite of her testimony was true.
United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). For the foregoing
reasons, Hope has not met her burden of showing that the prosecutors improper
comments prejudicially affected her substantial rights. See Lopez, 590 F.3d at
1256-58; McGarity, 669 F.3d at 1246-47.
This fact, however, does not excuse the prosecutors clearly improper
remarks, and we pause to remind the prosecutor of his special obligations in our
adversary system:
The [prosecutor] is the representative not of an ordinary
party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore,
in a criminal prosecution is not that it shall win a case,
but that justice shall be done. As such, he is in a peculiar
and very definite sense the servant of the law, the twofold
aim of which is that guilt shall not escape or innocence
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Cumulative Error
Finally, Hope asserts that, in light of all the alleged errors at trial, we should
reverse her convictions pursuant to the cumulative-error doctrine because she was
denied a fundamentally fair trial.
Under the cumulative-error doctrine, we will reverse a conviction if the
cumulative effect of the errors is prejudicial, even if the prejudice caused by each
individual error was harmless. United States v. Baker, 432 F.3d 1189, 1203 (11th
Cir. 2005). In making this determination, we consider, among other things, the
nature and number of the errors, any interrelationship of the errors, and the strength
of the governments case. Id. at 1223-24.
Having already determined that the district court did not err in applying 18
U.S.C. 1028A, referencing punishment in the jury instructions, or admitting
evidence of Hopes wealth and spending, we also conclude, from our review of the
trial as a whole, that Hope was not denied a fair trial.
IV. Conclusion
For all of the reasons discussed above, we affirm Hopes convictions.
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AFFIRMED.
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